Alumni Trustee Review of 'Flawed' Freeh Report Leaked

A group of trustees met on June 28, 2018 to discuss their review of source materials used in the Freeh report. Photo by Geoff Rushton/StateCollege.com

Click photo for gallery

A confidential report by seven alumni-elected Penn State trustees says a two-year review of source materials found the 2012 Freeh Report and investigation that led to it were "flawed" and "fatally compromised."

The Freeh Report was the culmination of an $8 million, university-commissioned investigation led by former FBI director Louis Freeh into the circumstances that led to the Jerry Sandusky child sexual abuse scandal. Freeh's report claimed former football coach Joe Paterno, president Graham Spanier, athletic director Tim Curley and senior vice president Gary Schultz knew of and concealed instances of Sandusky's abuse of children and blamed a "a culture of reverence for the football program that is ingrained at all levels of the campus community."

Sandusky, a former Penn State football defensive coordinator, was charged in November 2011 and convicted in 2012 on 45 counts related to child sexual abuse. He was sentenced to 30 to 60 years in prison and maintains his innocence. He recently was granted a re-sentencing but denied a new trial by Pennsylvania Superior Court.

The Freeh Report was used by the NCAA to levy unprecedented sanctions against Penn State football, but was also met with almost immediate criticisms of its findings and credibility. After the university rejected requests by then-alumni-elected trustee Anthony Lubrano, he and six other trustees won a court order in November 2015 to receive the source materials for Freeh's investigation. The order, however, restricted trustees from publicly discussing privileged or confidential materials, thus requiring board approval for the release of the report.

The alumni trustees' 113-page report contains few new revelations for those who have followed the case most closely, but it pulls together information that has slowly trickled out over the past six and a half years and builds the most comprehensive case to date for rejecting the Freeh Report.

It was authored by current trustees Ted Brown, Barbara Doran, Robert Jubelirer, Bill Oldsey and Alice Pope and former trustees Lubrano and Ryan McCombie, who left the board at the end of June.

They say that contrary to claims otherwise, the Freeh Report and investigation were not independent or thorough, misrepresented findings, ignored contradictory information and were rife with conflicts of interests and biases.

In an executive summary, the alumni trustees list their findings before delving into the materials:

- There was no support for the conclusion that Paterno, Spanier, Schultz or Curley knew Sandusky had harmed children.

- There was no support for the conclusion that Penn State's culture was responsible for allowing Sandusky to harm children.

- The Freeh team's independence was "fatally compromised" by collaboration with three interested parties: the NCAA, members of the Penn State Board of Trustees, and then-Gov. Tom Corbett and his Office of Attorney General.

- Those three interested parties "appear to have had their own conflicts of interest that influenced the unsupported conclusions of the Freeh Report."

- The Freeh Report was full of investigative and reporting flaws, using unreliable methods for conducting and analyzing interviews; failing to interview most of the individuals with direct knowledge of the events being investigated; supplying motivations supported only by conjecture and speculation; selectively misrepresenting investigative data; and ignoring or withholding "the vast majority of investigative findings which were contrary to the report's conclusions."

The alumni trustees wrote that Freeh did not fulfill his obligations and they repudiated his conclusions. They also wrote that the university "has an obligation to come to an honest understanding of the responses to Sandusky's actions, and to use that understanding to promote educational efforts to prevent future abuse."

By failing to formally review and evaluate the Freeh Report, the alumni trustees wrote, the rest of the board "breached its fiduciary duty," resulting in "grievous harm to the university," including "profound reputational damage," and costs of more than $300 million and rising.

The board's tacit acceptance of the Freeh Report also "callously attributed unsubstantiated culpability to respected and longstanding servants of the institution, resulting in irrecoverable damage to those individuals, their families and the entire university community."

When reached by phone Monday night, Lubrano said he was unaware that the report had been published and was not sure what he would be allowed to comment one due to the court order that kept the information confidential.

The university provided the following statement, signed by Board of Trustees Chair Mark Dambly and Penn State President Eric Barron:

The public disclosure of this unauthorized report in apparent violation of court-ordered confidentiality is reprehensible. We wish to make clear the report does not represent the position or opinions of the Penn State Board of Trustees or the University in any way. It is the expression of the personal opinions of the authors. It is also important to understand the University obtained a confidentiality order for the Freeh materials from a court in order to protect and promote a culture that asks employees to tell the truth and to speak up and report wrongdoing when they see it, without fear of retaliation. Finding the truth is dependent on such a commitment of confidentiality. This leak undermines these values and discourages a culture of reporting at Penn State. Furthermore, it is unfair to the men and women who provided information to Judge Freeh and his team, with an understanding that what they said to the interviewer would be maintained in confidence to the extent possible.

The five current Penn State trustees who were involved in the report (Brown, Doran, Jubelirer, Oldsey, and Pope) responded with the following:

We are offended by the implication that we are anything but conscientious stewards of the University who have honored our confidentiality obligations. The fact is the Board’s tacit acceptance of the Freeh Report led to profound reputational damage, along with over $250 million in costs so far to Penn State. It is perplexing that the University clings to the conclusions of a report that has been criticized by so many, including Penn State President Eric Barron. We fervently believe that the best way forward is for the Board and the University to openly and thoughtfully consider the comprehensive and well-researched findings from our review so that we can finally come to an honest conclusion.

Credible Critiques

In their report, the alumni trustees note that the Freeh Report has been met with "many credible critiques" over the years including a letter from 30 former chairs of the University Faculty Senate which said which said "[A]s scientists and scholars, we can say with conviction that the Freeh Report fails on its own merits as the indictment of the University that some have taken it to be. Evidence that would compel such an indictment is simply not there."

It also cites criticisms of the Freeh report by former trustee Ken Frazier, who oversaw the Special Investigative Committee ("I just don’t think Freeh’s inferences ... are as clear and irrefutable as some people seem to think they are.") President Eric Barron called the Freeh report "not useful" and said it created an "unwarranted" and "absurd" portrait of the university. The trustees also expressed disappointment Barron did not publicly share his own review of the Freeh Report, which he said in 2015 he planned to do.

A member of the Freeh investigative team, speaking anonymously to a reporter, said the use of the Freeh Report by the NCAA was inappropriate because of the limitations of the investigation. They believed it would help provide guidance in the future for leaders to identify problems. "Instead [NCAA President Mark] Emmert took the report and used Penn State's own resources to do them in," the Freeh team member said. "The institution is made of people too and they don't deserve this.

A federal high-security clearance investigation of Spanier for a potential government position was conducted around the same time as Freeh's investigation. Special investigator John Snedden found Spanier had committed no wrongdoing and later called the Freeh report “an embarrassment to law enforcement.”

'Coercive' Interviews

The alumni trustees reviewed hundreds of interviews conducted by the Freeh team as well as thousands of documents that were reviewed or generated during the original investigation.

The report said "several critical analyses of the Freeh Report have been conducted that indicated the Freeh Group's investigation and reporting methodology" did not meet American Bar Association standards. Interviews were not recorded and the review found multiple instances where drafts had substantial revisions between the original and final versions. One trustee who was interviewed by the Freeh team said the notes cherrypicked information and the summary was out of context.

The final interview summary for Spanier left out "important and meaningful information," such as Spanier's explanation that, after being told of Sandusky in a shower with a boy, he thought counseling was appropriate because Sandusky didn't know he shouldn't shower with boys, not because he was told of molestation. Spanier also said that when he told Curley and Schultz he was stepping down, the two men said that Spanier was being wronged because they had never told him of any abuse.

Multiple individuals approached the alumni trustees to say they were subjected to "coercive techniques" when interviewed by Freeh investigators. "Interviewers shouted, were insulting, and demanded that interviewees give them specific information," such as that Paterno knew about Sandusky abusing children. Some interviewees were told they couldn't leave until they provided specific statements, even when they protested that it would mean they would have to lie, according to the report. Others were called back multiple times, asked the same questions, and were told they were being uncooperative for refusing to provide information the interviewer wanted.

Interviewees who were at the time employed by the university were told their jobs depended on their cooperation, and one employee was fired "for failing to tell interviewers what they wanted to hear," according to the report.

Not interviewed, meanwhile, were most of the key players from the legal proceedings surrounding the Sandusky case. While most declined to be interviewed on advice of counsel or request of prosecutors, the Freeh Report fails to qualify any of its conclusions. Spanier was interviewed and the information he provided was "discounted summarily, without justification," the trustees report said.

While writing the report, several Freeh team members "voiced reservations about inferring motivations of the primary parties noting that this would involve speculation..." Those concerns, however, were not evident in the final report, which states as fact inferences that are not supported by evidence within the report itself, according to the trustees.

Conflicts

The Office of Attorney General, NCAA and Penn State officials had an active influence on the Freeh team, according to the alumni trustees.

A review of documents found that Freeh's group spoke regularly with Sandusky prosecutors, as well as federal investigators, according to the report. Corbett, the trustees wrote, granted approval for the collaboration before Freeh was even hired.

"There are abundant indications that law enforcement officials shared information with the Freeh group and that the intent was to steer the Freeh investigation in a direction that was consistent with the prosecution's case against Sandusky," the trustees' report said.

The report shows numerous instances of the OAG's office sharing information, as well as commentary about involved parties, with Freeh investigators. The Freeh team, meanwhile, "appeared to welcome this cozy relationship," and "collaborated extensively" from the outset by providing information such as interview summary notes, even for those not suspected of a crime, when requested by Deputy AG Frank Fina.

In one instance a Freeh team member told prosecutor Jonelle Eshbach they "expected to cooperate with her in every way we can" and in another an investigator said he did not "want to get cross with the AG by even appearing to help a possible target," when an interviewee asked to review summary notes of his interview. Fina also offered to review the Freeh Report before its publication, according to the trustees.

Federal investigators looking into the Second Mile had less frequent communication with the Freeh team, but provided updates about their investigation, shared information from interviews, offered speculation and commentary about criminal cases, shared their interest in specific information, according to the report.

Though the investigation was initially supposed to be independent, the NCAA provided the Freeh group with a list of what it wanted to learn and individuals to be interviewed and sent provided on-site education about NCAA standards for institutional control and ethical conduct. The Freeh group also agreed to weekly conference calls with the NCAA.

The Freeh Report claimed that "the work product was not shared with anyone who was not part of the Special Investigative Counsel's team."

The trustees' report cites emails from before Freeh was hired by Penn State to show he had long sought for his group to be the NCAA's go-to investigator. In the midst of the Penn State investigation, an NCAA official sent an email to a colleague asking for Freeh to be added "to our contractor list."

In the days after the Freeh Report was released, just before the NCAA used it as the basis for the sanctions against Penn State, one investigator wrote in an email that it would be a good time to pursue being the NCAA's external investigator. "It appears we have Emmert's attention now," the investigator wrote.

Freeh responded that they should set up a meeting and offer "a good cost contract" to be the NCAA's investigator. "[W]e can even craft a big discounted rate given the unique importance of such a client," Freeh wrote.

The report also notes interference by board members, including former chair Keith Masser, who in a press interview said he believed Penn State officials had covered up for Sandusky.

"Masser's comments are interesting," Freeh wrote in an email. "Interesting and tends to raise the expectations that 'we' will uncover a 'cover up!' This goes to our major 'headline' and key findings and recommendations — exactly what the Grand Jury first noted — the motivation by the most senior PSU officials (and perhaps the 'coach') to move these 'bad things off campus,' ignore the suffering of the child victims, and 'help' a friend because it seemed like the 'humane' thing to do. Right now I believe this is our main 'message.'"

Frank Guadagnino, then outside counsel for the university and now vice president for administration, sent an email to the Freeh group about an Esquire story focusing on whether Paterno knew about a 1998 investigation of Sandusky. Guadagnino suggested the Freeh team follow up on leads and examine Paterno's calendar.

Frazier, the trustee and Special Investigation Committee chair, sent an email to the Freeh team as their report was being drafted in June 2012 with an ESPN article that concluded Sandusky wasn't stopped earlier because no one wanted to threaten the legacy of Paterno or the football team. Frazier called the article "well-reasoned" and said it focused on "the larger lessons to be learned from excessive respect for 'icons' (Coach Paterno and PS football)."

A discussion among Freeh and investigators ensued in which they say the report should focus on the "what" and "how" of the Sandusky case but not they "why," since they could not interview most of the principals involved. "I understand — there is a stronger case to be made for 'protecting the university than JP or the 'FB program' — which is never really articulated in any evidence I have seen," Freeh wrote.

The trustees' report also suggests the release of the Freeh report and accompanying press conference was designed to maximize media coverage but also ensure reporters had to rely, at first, only on Freeh's press release, not the actual report. Leaked documents appeared online eight hours before the report's 9 a.m. release and included text addressing a website crash. That crash did occur and Freeh's statement was distributed to media before the report was available. Freeh then took questions at 10 a.m. before reporters could review the report.

Evidence

The Freeh Report portrayed a 2001 email chain among Curley, Schultz and Spanier as evidence that three administrators knowingly decided not to report the shower incident to child welfare authorities. The emails seemed to suggest they had agreed to an initial plan of action — telling Sandusky he could not bring children to football facilities, that he should receive counseling informing the director of the Second Mile and informing Department of Public Welfare — but was changed to not include informing public welfare unless Sandusky was uncooperative with other elements of the plan. That decision came following an email from Curley in which he wrote "after giving it more thought and talking it over with Joe.

But according to the alumni trustees' report, the emails were far from definitive and did not indicate the administrators were told about sexual abuse.

In a work diary, Freeh investigators wrote, "What evidence is there they knew it was more than horseplay?"

In his interview with Freeh's team, Spanier said he was never told about sexual abuse and would have taken action if he were. He said he believed the idea of counseling was because Sandusky didn't recognize it was inappropriate to shower with children. Regarding his comment in the emails that "the only downside for us is if the message isn't heard and acted upon, and we then become vulnerable for not having reported it," Spanier said he was referring to Curley's concern that Sandusky was no longer a Penn State employee and they could not dictate terms to him, which would require them to revisit the situation later.

Spanier also said that Wendell Courtney, Penn State's outside counsel at the time, told him Schultz had consulted him about the incident and if he believed Sandusky had committed sexual abuse he would have informed Spanier directly.

As the Freeh group discussed the interview, Freeh asked how Spanier's comments related to the "why," and how consistent Spanier's comments were with the evidence that "he must have been told about allegation of sexual conduct? Or, is he telling the truth?"

During Snedden's federal high-security clearance investigation of Spanier, meanwhile, Spanier passed a polygraph and was interviewed under oath, according to the report. Curley and Schultz both said that McQueary had not told them of sexual abuse and described what he saw as "horseplay," and that that is how it was relayed to Spanier.

Snedden described Spanier as credible and said, "There was no coverup. There was no conspiracy. There was nothing to cover up."

The trustees' report also cites multiple interviewees who said McQueary was vague and nonspecific in what he described to Paterno after seeing Sandusky in the shower with a boy. Multiple interviewees also described Spanier as an ethical person who would have acted if he were aware of abuse.

A 1998 incident in which Sandusky was investigated and no charges were filed was cited in the Freeh Report as evidence that administrators would have known Sandusky was a pedophile in 2001, the trustees' report said it could have reasonably led to the assumption he was not.

Freeh's group, the report says, was provided with training on "pillar of the community" child sex offenders. That included information on how Sandusky fit the profile of "an offender whose stature in the community blinded people to the possibility he could be harming children," a concept not included in the Freeh Report. The training also showed how youth-serving organizations and many others often are unaware of how to recognize acquaintance offenders, but the possibility the Penn State officials unintentionally failed to understand Sandusky's actions also was not considered in the Freeh Report.

The trustees' analysis also found no instance of anyone being told to conceal information about Sandusky and interviews roundly described Paterno, Curley, Schultz and Spanier as men of integrity.

In an email to then-general counsel Cynthia Baldwin in 2011, Courtney wrote that he did not have a file on the incident but recalled that in 2001 "someone ... contacted Children and Youth Services to advise of the situation..." In his Grand Jury testimony Schultz also said his recollection was that "we asked a child protective agency to look into the matter." The trustees' review found no indication that the Freeh investigators looked into whether any report was made in 2001.

The report further seeks to refute Freeh's assignment of motives and Penn State culture to avoid bad publicity for the football program. In notes and drafts, investigators question the basis for statements that the football program was uncooperative with the rest of the university. In the margin adjacent to a section of notes stating an employee felt his job would be threatened if he reported a crime against a child, a handwritten note read "No evidence at all!"

Penn State assistant director of player personnel Kenny Sanders will now be Oregon's director of recruiting, Sanders announced the news on Monday evening.

“In 2014 I was given an opportunity to be a part of a community, university and football program that embodies all the principles that promote the growth and success of young men academically, socially and athletically,” Sanders sai